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The Law on Testamentary Capacity After Clitheroe v Bond (2021)

A Will can be challenged and set aside if it can be shown that the deceased lacked ‘testamentary capacity’.

Banks v Goodfellow (1870)

The relevant legal test for establishing (testamentary) capacity was laid first down in the case of Banks v Goodfellow (1870) which provided a 4 limb test:

  • a) Did the deceased understand that they were making a will and the effects
  • b) Did the deceased understand the nature and extent of their estate being disposed of
  • c) Did the deceased understand as to those who would have claims on the estate
  • d) Was the deceased impaired by any disorder of the mind or delusions

The Mental Health Act 2005

The Mental Health Act 2005 (“MCA”) came into force on 1st April 2007 which dealt with capacity for living persons.

The MCA test for capacity is:

An inability to make a decision for themself which is based on whether they can

  • i) Understand information relevant to the decision,
  • ii) Retain that information,
  • iii) Use or weigh that information as part of the process of making the decision,
  • iv) Communicate their decision

There was uncertainty around whether the MCA should also be adopted as the test on capacity for deceased persons.

The difference between the two tests are primarily:

  • Burden of proof
  • Degree of understanding of relevant information
  • Degree of understanding of (reasonably foreseeable) consequences

The MCA goes further than the Banks test and if adopted may well mean that capacity is not established in some cases and scenarios.

The conflict between the two tests came to a head in the recent case of Clitheroe v Bond (2021) which was heard on appeal in the High Court.

Clitheroe v Bond (2021)

This case concerned the Wills of Mrs Jean Clitheroe. She made one in 2010 and one in 2013. She had a son, John Clitheroe, and two daughters, Susan Bond, and Debra Clitheroe. Debra sadly died in 2009 before Mrs Clitheroe.

Both the 2010 and 2013 Wills essentially appointed John as sole executor with the residuary estate to him.

Susan challenged both Wills on the basis that Jean lacked testamentary capacity because she was suffering from a complex grief reaction following Debra’s death and a continuing affective disorder beyond it, manifested by depression and insane delusions regarding Susan.

It was accepted by all parties that “Jean was a very strong character, and was described among other things as strong-willed and stubborn. The experts also agreed that there was nothing in the medical records to suggest any cognitive impairment. She was found by every treating clinician to have had capacity, including just before her death, albeit she at no stage had a full psychiatric assessment. She did, however, undoubtedly suffer from a number of other medical problems, including ones that impacted her mobility.”

The judge at first instance found that, applying the Banks test “Jean was at the material times suffering from an affective disorder which included a complex grief reaction and persisting depression, which he found impaired her testamentary capacity.”

John appealed.

The relevant ground of appeal was that the incorrect test has been applied – it should have been the MCA test.

The appeal court held that as there was no dispute before the original judge that the Banks test was the correct test, John could not now raise this as a ground of appeal.

The way that the trial was conducted (both in terms of expect and factual evidence) was based on the application of the Banks test – no consideration has been given to the application of the MCA test.

The appeal court held that

“the conclusions reached in Walker v Badmin and James v James were correct. The Banks test, which as the Court of Appeal in Sharp v Adam has withstood the test of time, has not been swept away by the MCA.

The Banks test was very well established when the MCA was enacted. Nothing in the Act expressly alters it. Although the extent of the differences between the Banks test and the MCA test remain to be determined, there are clearly some, such as the clear presumption of capacity and the obligation under s 1(3).

In summary, the Banks test has not been overridden by the MCA. Further, there is no sufficiently good reason to depart from well-established case law…”


It seems that the courts have determined that the relevant test when assessing whether a deceased person had capacity to make a Will is that established in Banks and provides clarity for how expert and factual evidence should be approached when bringing or defending such claims.